A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Tuesday, July 16, 2013

"Canadian Experience" and Human Rights

The Star is running a story today about the Ontario Human Rights Commission's new policy directive, which asserts that demanding "Canadian experience" for job candidates is unlawful discrimination.

By way of background, let me say first that the OHRC's policies are considered to be persuasive interpretations of human rights legislation, and they give "guidance" to adjudicators, but they do not, in and of themselves, have the force of law. Since Ontario's human rights system was revamped several years ago, the OHRC has a very limited mandate - in general, it no longer investigates or adjudicates human rights claims.

That being said, it's clearly correct here, at least on the broad principle. Insisting on "Canadian experience" will have the effect of excluding recent immigrants, which is discriminatory on the basis of place of origin. In order to justify it, one needs to have a bona fide occupational requirement.

Nonetheless, I think there may be a distinction to be drawn, in many cases, between requiring Canadian experience and preferring Canadian experience, and I believe the OHRC's policy may be overbroad in a couple of ways, and in particular where it argues that that employers - writ large - should not assign less weight for foreign work experience or ask questions that may indirectly indicate where their work experience was obtained.

What's the Concern?
The primary concern expressed by the OHRC appears to be that employers may be looking for Canadian experience as an indicator of assimilation, of understanding how Canadians interact with each other, and of 'fitting in'. Offshoots of this debate have included the 'smelly food' argument: Some cultures eat foods with very pungent aromas, and so when you prepare them in the lunchroom, others can be irritated. (This issue has come up in HRTO litigation, and 'smelly food in the law library' was also the subject of a lengthy and passionate email listserv debate in law school.)

This is absolutely right: With very narrow exceptions, it is wholly inappropriate to refuse someone employment simply because they don't get Canadian culture.

It's easy to say as a general proposition, but when you start talking about customer service roles, people might reasonably argue that if you don't know how to deal with the public, you're not suitable to the position. And the argument gets really tricky when you start looking at cultural differences as to respect for diversity, because, let's face it, not every country bothers with this debate at all. In Canada we aim to be inclusive, and this is the point, but many cultural groups have not developed this appreciation for diversity, and some groups are even downright misogynistic, and hiring a customer service representative who hasn't yet come to recognize the inappropriateness of certain conduct...risks inviting Human Rights Applications against the employer based on his or her conduct.

(For example, I recently heard a complaint from a close friend of mine that, when inviting a quotation on a particular service, the service provider suggested that it might be better if he spoke with her husband about it, assuming without justification that she was married [she isn't], and expecting that her husband would have the final say in the matter. Not to say that the person is necessarily a recent immigrant, or that everyone born in Canada is tolerant and inclusive, but this is the kind of issue about which an employer might reasonably worry when hiring recent immigrants from jurisdictions without human rights protections or multiculturalism.)

Still, at the end of the day, it's a problem that an employer can - and should - address through clear policies, training, supervision, and discipline where necessary. Quite frankly, employers who assume that Canadians by birth or naturalization will not act offensively are probably running a greater risk of liability than employers who hire recent immigrants and provide clear training and guidelines as to what kind of conduct is acceptable or unacceptable.

The Need for Transitional Experience

In certain professions, it may well be justifiable to prefer Canadian experience. Law is an easy example, where there are differences across jurisdictions in both substantive law and legal practice: Hiring an experienced New York lawyer to practice Ontario law would be kind of like hiring a very experienced auto mechanic to fix refrigerators: The skill set may be similar, but the experience doesn't entirely carry over. If I'm looking for a competent lawyer who can just pick up files and run with them, right away, then I need to hire someone with experience in the Canadian legal system (and moreover in the specific Province), and no amount of American experience - despite the many similarities in laws and legal systems - will fully equip somebody to do that as well as an experienced Canadian lawyer. (That being said, it's probably also true that it doesn't take much Canadian experience to bring such a lawyer up to a similar level as Canadian peers.)

Indeed, there are some fairly significant mobility constraints across the country, and even within Provinces. The Court system in Toronto, for example, operates somewhat differently from other areas in the Province. That's not a big hurdle to jump (speaking from experience), but it goes to show how easy geographical obstacles can arise.

However, if the New York lawyer has obtained his license to practice Ontario law, then there is no basis whatsoever for excluding him altogether from consideration. He may need to stand beside more junior lawyers when competing for work, but he should still be able to compete - even for lawyers, with vast jurisdictional differences, it would be difficult for a firm to justify a policy of not hiring people without Canadian practice experience. To a large extent, the governing bodies of the professions are responsible for assessing the competency of foreign-trained professionals (which obviously raises its own difficulties)...but the standard is going to be similar to that for entry-level Canadian professionals, which means that while an employer can be satisfied that a foreign-trained Canadian-licensed professional meets the basic competencies...the simple fact remains that the Canadian experience often will be more valuable, if not essential, to the position.

A similar logic probably applies in a lot of industries, and for similar reasons, too: Everyone operates within some sort of regulatory regime, and unless the regulatory regime adheres to an international standard, such standards will often differ from country to country. That's not to say that Canadian standards are 'higher' or 'better' than everyone else's, in all cases, but they are different, so for high-level positions where an individual with limited oversight has to adhere to the Canadian regulatory regime, it simply makes sense that such an individual needs Canadian experience. Which, again, may simply need to be a more junior position.

Imagine hiring an experienced American Human Resources Manager - requirements for paid vacation? Why can't we fire at will? What's CPP? (Indeed, some of these problems do routinely arise when American companies expand into Canada and maintain a centralized American human resources department. Simply put: You need people with experience in the Canadian system.) Or an American tax accountant. Those are the easy ones, but local laws touch on all sorts of industries in different and unique ways. And the more that legal compliance factors into a person's job, the more difficult it will be to do the job without Canadian experience.

The reason I'm using American examples, too, is because they're about as similar to us as anyone, and yet there are still pronounced differences. Go a little bit further and take a Mexican lawyer, and suddenly the differences in legal regimes are much more significant to English Canada.

As well, there are practical differences to many professions in Canada as opposed to elsewhere. The differences in our climate, our population density, our geography, our economy, and our demography, among others, make for substantively different skill sets that get developed here as opposed to elsewhere, in some professions.

The simple reality is that, in many cases, Canadian experience is simply more applicable than foreign experience, and therefore, for a Canadian employer, is actually, objectively, more valuable, with measurable differences in impacts on competencies. Or at least that there's real value in having a threshold amount of Canadian experience. So for the OHRC to argue that employers, in general, should not value foreign experience less...in some cases, that will be true, but in many cases, that will simply be a commercially absurd position to take.

What Should Employers Be Required To Do?
I would argue that refusing outright to consider non-Canadian experience is probably a violation of the Code in most cases, but that requiring employers to consider all experience to be equal would be unreasonable.

Fortunately, there's a middle ground: I think that the reasonable approach to take to this issue, in general, would be to require employers to undertake a bona fide assessment of the applicability of a candidate's foreign experience to the job, without simply jumping to conclusions based on stereotypes. Let's suppose that I'm offering a job which requires somebody to have experience developing products capable of dealing with extreme winter weather. Canadians are more likely than many others to have that experience, but they aren't the only ones. Lots of other countries get winter weather, and perhaps more importantly many companies would work on products which need to function in such countries. So prioritizing "Canadian experience" would have the result that I would prefer a Canadian who has never done this kind of work, over a Norwegian who has, or over a Floridian who has worked on products with significant distribution in northern climes. That is a problem, but simply requiring applicable experience, even if people from certain areas are more or less likely to have that experience, is - to my mind - quite reasonable.

If a candidate isn't licensed to do the job in Canada, that's simple. But if they are, it's prudent to seriously address the question: What am I really looking for in this position, and does this person's experience satisfy my needs? And I think that asking that question in good faith, without tainting the analysis using stereotypes or prejudgment, probably ought to keep an employer on the right path in terms of human rights.

While the OHRC policy does suggest taking a flexible and individualized approach, it isn't clear to me whether or not they would take the position that, hypothetically, a company like Blue Mountain Resort requiring or preferring "ski industry" experience would constitute prima facie discrimination.

The Difficulty of Obtaining Transitional Experience
The OHRC policy highlights that newcomers are in a difficult position because they "can’t get a job without Canadian experience and they can’t get Canadian experience without a job."

Interestingly, if you remove "Canadian" from that quotation, then you end up with exactly the same complaint made by all new entrants to the workforce in recent decades. To quote Great Big Sea: "You can't make nothing out of nothing. Everybody needs a start."

Despite my contention that the policy may be overbroad, I agree that it is an important issue...but I think that the challenges facing recent immigrants in terms of entry to the labour market is similar to the challenges facing many Canadian young people or other Canadians seeking to re-enter the market after a lengthy absence: Too many employers do not want to incur the cost of training people in essential skills and competencies. It's understandable. For the boomer generation, many people stayed with one employer for their entire careers, meaning that the employer really got value for the training they provided at the outset. But that is no longer true, and employers struggle with the idea of paying to train a junior employee and then watching their investment walk away and join the competition.

And with unpaid internships becoming something of a hot-button issue these days - and legitimately so - this issue is only going to become worse unless we develop meaningful policy initiatives to address the whole issue. And not just pigeon-hole elements of it.

Comments on "Fit"
The OHRC has recommended that employers not base hiring decisions on subjective factors such as "fit".

While I understand that 'fit' can be code for "We want to hire people more similar to the existing demographics of the workplace", I think it's unrealistic to discount it entirely, and incorrect to think that it's always discriminatory. For example, different companies have different 'corporate cultures', and a small office with a hands-on owner might legitimately be concerned about hiring someone from a large corporate environment where the individual would have performed similar duties but with limited oversight. Perfectly legitimate, perfectly reasonable, completely subjective.

Digression about Interview Questions and s.23 of the Code

I feel obligated to make an additional remark about questions that 'indirectly' identify candidates by prohibited grounds of discrimination: Such questions are prohibited by s.23 of the Code, but exactly what that means is unclear. Some, such as Professor Doorey, and the OHRC itself, have argued for a broad interpretation of this prohibition, that asking a candidate where they went to school, for example, is improper, because it may reveal information about place of origin, religion, etc. The principle appears to be that the prohibition extends to any question which may call for an answer that could be used to draw inferences about prohibited grounds of discrimination.

I argue that this is absurd: Just about any question has the potential to reveal such information. For example, asking for an individual's name is actually quite likely to provide information from which conclusions might be drawn about race, ancestry, colour, ethnic origin, sex, place of origin, and/or creed. Asking for somebody's job history is likewise likely to provide information from which one might make inferences about age, place of origin, and various other prohibited grounds. The trouble is that if these inquiries are interpreted as being prima facie discriminatory, there's no defence at all for them on a written job application, and very limited defences in an interview setting.

If you're actually using the questions as proxies to gather information about prohibited grounds, then that violates s.23...but if you aren't, then I don't have a problem with it.

So, you might ask me: What does this prohibition actually do? Section 5 of the Code actually prohibits discrimination, so if I'm arguing that there has to be some kind of intention to elicit information on the basis of which one might unlawfully discriminate, doesn't that imply that there would be actual discrimination going on, and therefore, wouldn't the prohibition itself be moot?

Simply put, no. Section 23 of the Code is a practical provision, prohibiting questions which directly or indirectly identify a candidate by a prohibited ground. It makes the question "Do you have kids" illegal not because it's an inherently offensive question (indeed, it's common small talk), but rather because the answer might be used for discriminatory purposes which would be extremely difficult to prove. So it provides a meaningful protection to job candidates by making the question itself illegal. If an interviewer asks me if I have kids, and then doesn't hire me, I might not be able to prove that the hiring decision was based on my answer...so the Legislature has stepped in and said "You can't ask the question at all."

The provision, altogether, is about information gathering, and not use. It functions in the reality where we know that we can't get inside the employer's head as to why they rejected a candidate, and acknowledges that the fact that an employer may have had information about prohibited grounds will not be enough to prove that the hiring decision was based on information about prohibited grounds.

Therefore, establishing that a question was intended to gather information about prohibited grounds - while less likely to be innocuous - still likely doesn't get you to the point of being able to prove a discriminatory hiring decision. That's where the 'indirectly' portion of s.23 comes in. If I ask you for your high school transcripts because I want to know how you did in high school, then at no point am I gathering information about your place of origin, creed, etc., any more than asking you for an interview is gathering information about your sex, colour, etc. On the other hand, if I'm asking for high school transcripts because I want to know where you grew up, that violates s.23, regardless of whether or not that factors into my hiring decision.

And here's where the evidentiary threshold becomes important: Particularly in a scenario where the question seems unusual or unnecessary (let's say I'm asking an experienced lawyer for high school transcripts), and the question is capable of standing as a proxy for a prohibited ground, an inference might be drawn that such was the intention, and I might therefore be called upon to explain why I asked the question.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.